Employment Law Daily Odd and aggressive behavior, refusing fit-for-duty exam doom employee’s ADA claims
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Tuesday, April 17, 2018

Odd and aggressive behavior, refusing fit-for-duty exam doom employee’s ADA claims

By Nicole D. Prysby, J.D.

An employee’s erratic and aggressive behavior was a sufficient basis for the employer to place him on leave and require him to undergo a fitness for duty exam before returning to work, held a federal district court in Illinois. Among other behaviors of note, he had stated that under the “unity” theory, which he espoused, dividers need to be eliminated and he claimed that his supervisor and others were dividers. Finding the employee’s use of the word “eliminate” troubling, the court explained that the ADA “does not require an employer to retain a potentially violent employee” and that it “may seek a professional assessment” of the likely recurrence of unacceptable behavior before deciding whether an employee is qualified to continue employment. When the employee failed to undergo the exam, the employer was justified in terminating him. Summary judgment was therefore granted on his ADA claim. His Title VII retaliation claim also failed (Koszuta v. Office Depot, Inc., April 12, 2018, Castillo, R.).

Troubling comments, behavior. The IT employee had previously taken a six-month leave for mental health treatment and returned to work. He had a significant interest in “unity” theory, which he described as a social cause promoting individuals to unite together and come up with brilliant ideas. He had a blog on the topic and distributed materials for his website at work. In November 2013, the employer was in the process of a merger. At that time, an incident occurred between the employee and a coworker. The employee complained to his supervisor; during the conversation, he acted aggressively towards her and disclosed that he was not on medications for his mental health. He also complained to HR that he was being bullied by his supervisor and that she was a divider and that eliminating dividers was a key fundamental of unity theory. Human resources interviewed several of his coworkers, who stated that he acted aggressively, frequently spoke about his “unity” theories, and caused tension. During a town hall meeting, he asked the CEO at length about how the unity theory could be promoted at work.

Thereafter, the employee’s supervisor reported that he had acted threateningly and aggressively towards her and the employer determined that he needed to be placed on leave. He was escorted out and the following day, the employer had a conference call with him, during which he complained about alleged ethical violations by his supervisor. The employer then sent him a letter detailing concerns about his workplace behavior and informing him that it intended for him to obtain a fitness-for-duty exam before returning to work. In response, the employee wrote a lengthy complaint to the CEO about his supervisor and about HR. The employer continued to try to work with him to arrange a fit-for-duty exam, but he refused. The employer contacted him to arrange a separation agreement; he refused. There was additional back and forth and, at one point, the employee filed a sex discrimination charge with the EEOC. Ultimately, he was terminated eight weeks after his leave began. He filed an additional EEOC charge, alleging discrimination under the ADA for placing him on leave and requiring him to undergo a fitness for duty examination.

Disability discrimination. Moving for summary judgment, the employer argued that the employee’s ADA “regarded as” and unlawful medical inquiry claims failed because it was justified in putting him on leave and asking him to have a fit-for-duty exam. The court sided with the employer, finding that the employee’s coworkers saw him engage in unusual or aggressive behavior, and the employee had taken an extended leave less than a year prior for mental health. Also troubling was that the employee told HR that he wanted to “remove” or eliminate dividers and he saw two coworkers as “dividers.” Based on this, the employer had a legitimate reason to believe his behavior was impacting his ability to work and it was justified in requesting a fit-for-duty exam.

With respect to his termination, he refused the exam and instead made personal attacks on the employees who were assigned to address his situation. Given these facts, his discharge did not violate the ADA and the employee presented no evidence of weaknesses or contradictions in the proffered reason for the discharge that would suggest pretext. Summary judgment was therefore granted for the employer on the ADA claims.

Retaliation. As for the Title VII retaliation claim, there was no question the employee’s EEOC charge was protected activity and his discharge was an adverse action. However, he failed to present evidence of a causal link between the two. The employer had a legitimate basis for its concerns and he refused to cooperate with the evaluation process for eight weeks. This gave the employer a legitimate reason to discharge him. Although the employee argued that his supervisor retaliated against him for his reports of her unethical management, even if that were true, it would not provide a causal connection because the connection had to relate to his gender discrimination complaint to EEOC, not an unrelated complaint about an action not prohibited by Title VII. Further, his supervisor was not the individual who made the decision to fire him. Although she played a role in the initial decision to have the employee placed on leave, the HR department investigated and obtained additional evidence that gave it cause for concern.

The employee also pointed to a release the employer wanted him to sign to receive a severance package. The release required that he withdraw his EEOC complaint, which he argued was unlawful. The court disagreed, finding that conditioning benefits on promises not to file charges with the EEOC is not sufficient, on its own, to constitute retaliation. Summary judgment was therefore granted for the employer on the retaliation claim.

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